The Commercial Club of Indianapolis v. Hilliker

• Decision Date: 25 May 1898
• Docket Number: 2,169
• Citation: 50 N.E. 578,20 Ind.App. 239
• Parties: THE COMMERCIAL CLUB OF INDIANAPOLIS v. HILLIKER, ADMINISTRATOR
• Court: Indiana Appellate Court

50 N.E. 578

20 Ind.App. 239

THE COMMERCIAL CLUB OF INDIANAPOLIS v. HILLIKER, ADMINISTRATOR

No. 2,169

Court of Appeals of Indiana

May 25, 1898

From the Hamilton Circuit Court.

Reversed.

William A. Ketcham and F. E. Matson, for appellant.

Beckett & Doan and Christian & Christian, for appellee.

OPINION

HENLEY, C. J.

This was an action to recover damages for the death of decedent resulting from the alleged negligent acts of appellant. The case originated in the Marion Superior Court and was venued to the Hamilton Circuit Court. The complaint upon which the issues were joined and tried, was in three paragraphs.

In the first paragraph of complaint it is charged that appellant owned and controlled a public office building in Indianapolis, known as the Commercial Club Building, eight stories in height; that it is situated and fronts on South Meridian street; that the first story is used as a banking room in front, the second to the sixth stories inclusive, for office purposes, the seventh for a cafe, and the eighth for a restaurant; that for the convenience of its occupants, etc., two elevators had been provided, one for the purpose of carrying passengers, situated in the front part, and one for carrying freight, in the rear of said building, and that access to each of them is from a wide hallway on the first floor; that the car of the rear elevator is uninclosed, except by the walls of the shaft in which it runs, said shaft being provided with automatic gates at each of the floors; that the platform of the car is about four feet wide by five feet long, and that between the platform and the walls of the shaft is a space of four or five inches, and that there is no covering upon the car, except the roof of the building; that the front elevator is used exclusively for passengers and the rear one for freight; that on August 29, 1894, the decedent, who was a young married woman, went to said building, entering the same by the front hall way, and desiring to go to the eighth floor to see some one with whom she had business, she attempted to take passage on the front elevator, but was wrongfully and negligently prevented from so doing by the servant of appellant, who was in charge of the same, and who wrongfully refused to carry her on said passenger elevator; that said servant negligently conducted said decedent to said rear elevator, and negligently placed her upon it, and negligently started it, but failed to accompany her and manage said elevator; that it could not be properly managed and controlled unless said elevator engineer was upon it; that she was unaccustomed to riding in elevators and had no knowledge or experience in managing the same, and that said servant well knew said fact; that decedent thought and believed, and was induced to believe by said servant, that said servant was upon said car, managing and controlling it; that he would not leave the same, but would carry her to her destination; that said elevator ascended at a high and dangerous rate of speed, and when decedent discovered that appellant's servant was not on it, and not knowing herself how to check or stop it, and believing that it would run out the top of said building and that she would be killed, she became frightened and terrified, and without any fault or negligence on her part she fell and was thrown from said car at the seventh floor, between the elevator car and the wall of the shaft, whereby she was killed. It is then averred that she left heirs and next of kin who are entitled to the damages, etc.

The second paragraph of complaint is substantially like the first, except that it describes the manner in which the elevator is managed and controlled by a wire rope; that the space between the platform and the car and the walls of the shaft in which it runs is between four and five inches, except at each of the floors, where the space is less than one inch, on account of projections at such floors; that at the seventh floor, she was dragged off the elevator and by reason of said projecting floor, between the platform of the car and the walls of the shaft; that said elevator was negligently constructed and unfit for use as a passenger elevator, in that it was not properly guarded and protected, and that such fact was known to appellant.

In the third paragraph it is further charged that decedent was, at the time of her death, earning $ 6.00 per week; that she was living with her mother and contributed to her support and the support of her infant brother and sister.

The sufficiency of the first and third paragraphs of complaint was challenged by demurrer, which was overruled, a general denial to each paragraph was filed, trial by jury, special verdict, and judgment for appellee. The appellant assigned errors as follows: (1) That the court erred in overruling the demurrer to the amended complaint filed February 28, 1895; (2) that the court erred in overruling the demurrer to the additional third paragraph of complaint filed February 28, 1895; (3) that the complaint does not state facts sufficient to constitute a cause of action; (4) that the court erred in overruling appellant's motion for a new trial; (5) that the court erred in sustaining appellee's motion for judgment on the verdict; (6) that the court erred in rendering judgment against appellant on the verdict.

This action is brought under section 285, Burns' R. S. 1894, which is as follows: "When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased." Under this section of the statute it has been held that it is sufficient in describing the beneficiaries to allege in the complaint and prove on the trial that there are next of kin who are entitled under the statute to damages. Jeffersonville, etc., R. R. Co. v. Hendricks, Admr., 41 Ind. 48.

The...